Mr. Edwin Nwegbu V. Mr. Sunny C. Agwu & Anor. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

GEORGE OLADINDE SHOREMI, J.C.A (Delivering the Leading Judgment)

This is an appeal against the decision of the Edo State High Court sitting in Benin City delivered on 29/11/2007. The facts leading to this appeal are that the Appellant as Plaintiff in the trial court sued the Respondent via undefended list procedure but was subsequently transferred to the General Cause list, the Plaintiff/Appellant claimed against the Respondents in his statement of claim as follows:-

“Whereof the Plaintiff claims from the Defendants jointly and severally the total sum of Six Million, Six Hundred and seventy thousand Naira (N6,670,000.00) only being the sum paid to and agreed to be refunded by the Defendants and the accrued interest thereon”.

The Plaintiff/Appellant founded his case on the amount of money he allegedly paid to the Defendants/Respondents for the purpose of taking his son from Nigeria to the United States of America (U.S.A.). It is his case that the transaction failed and decided to claim for a refund of the sums paid and interest thereon.

The Defendants/Respondents denied requesting or receiving any money from the Plaintiff/Appellant for themselves for the purpose of taking his son to the United States of America. It is their case that at the request of the Plaintiff/Appellant, they appealed to their daughter in the United Kingdom to assist the Plaintiff/Appellant’s son and that the transaction was between the Plaintiff/Appellant, their daughter and one Charles Ogbegie, introduced by their daughter and to whom the money was given for the purpose of taking Plaintiff/Appellant’s son to the U.S.A. using Senegal as a transit point. It is also their case as formulated in their Amended Statement of Defence that if any such transaction was found to have existed between them it is an illegal contract that cannot be enforced in the Court of law.

At the end of the trial, the learned trial Judge entered judgment in favour of the Defendants/respondents by dismissing the claim of the Plaintiff/Appellant. The learned trial Judge at the end of the judgment held as follows I quote –

“Contrary to the claim of the Plaintiff in this case that it was the Defendants who approached him and asked if he had anybody to send abroad, there is on record the evidence of PW2, his son, confirming the case of the defence that it was the Plaintiff who appealed to the Defendants, who are known to him not be travel agents, to plead with their daughter to help the PW2 travel abroad. According to the evidence of the Plaintiff, one week after the commencement of the trial he went to ask and he was told there was no news yet. “After a year”. To quote him” they told me that my son was still in Senegal and I asked whether they had not crossed and they said “no”. It clearly appears to me from the foregoing that the Plaintiff knew that the transaction in respect of which he paid the money was one to take his son out of Nigeria using Senegal as a transit point, as averred by the defence, in breach of the law, and was to be performed in a legally objectionable manner. In West Const. Con. V. Batalha (2006) 9 NWLR Pt 986 Page 595 621 – 622 Pats Acholonu JSC listed the situation which could make a contract incapable of enforcement to include:

a) where both parties knew that the performance of the contract necessarily involves the commission of an act which is to their knowledge criminal,

b) both parties knew that the contract is intended to be performed in a manner which, to their knowledge is legally objectionable, and

c) both parties participated in performing the contract in a manner which they knew to be legally unacceptable.

This is the basis of the principle of law encapsulated in the maxim ex turpi canuso non oritur action, that is, an action does not arise from a base cause and a court does not generally enforce a contract or transaction tainted will illegality or contrary to public policy.

In the result, I am unable to lend the authority of this court to the Plaintiff for the purpose of enforcing a base claim as his claim in this case is tainted with illegality and clearly contrary to public policy. The claim is accordingly dismissed”.

The Appellant dissatisfied with the judgment appealed against it by giving a notice of Appeal with 3 grounds. I quote without particulars:

“(1) GROUND 1: MISDIRECTION-IN-LAW